n 2016, a young man was arrested for robbery in Kansas City, Mo. The prosecution alleged that the man had forcefully robbed a pedestrian outside of the city’s Embassy Suites hotel. The man, unable to afford a private attorney, waited in jail for 13 months before the local public defender’s office had a chance to take his case. Once the public defender’s office opened his case file, however, the investigation was swift–his public defender quickly realized that 23 seconds after the victim placed a 911 call to report the robbery, the man had been caught on tape at a gas station that was a six-minute walk from the hotel, proving he could not have committed the crime. The man was released shortly after the investigative evidence was revealed, but he had already spent 13 months unnecessarily confined in a jail cell, jeopardizing employment, housing, and important relationships.
This man’s situation wasn’t unique, according to Ruth Petsch, head of Kansas City’s public defender’s office. With only 34 attorneys, the Missouri public defender system was so overloaded with cases in 2017 that it stopped taking new clients altogether, instead forcing people to either take a plea deal or wait indefinitely in jail for an assignment to a defender.
Missouri has the second-highest caseload per public defender—behind only Louisiana— but the situation is not much better elsewhere around the country. The United States criminal justice system is full of inefficiencies, poor incentives, and rules and practices unseen elsewhere in the developed world. The country’s laws give prosecutors enormous discretion and power, and in many places leave defendants and their poorly funded defenders at the mercy of prosecutorial decisions. This imbalance causes perverse injustices and is a driving factor of mass incarceration and the politicization of criminal justice. If the United States is to achieve its ideals of justice and fairness, the country must turn its eyes to prosecution and defense.
To understand just how much power prosecutors have in the justice system, it is important to first understand the whole criminal justice process, from the moment an arrest is made to the locking of a prison cell. This process has eight major steps, three of which (highlighted in red) feature prosecutors front and center:
- The local, state, or federal legislature passes a law prohibiting some conduct.
- The police arrest an individual for an alleged violation of that law, and bring that individual to jail, usually a county jail.
- A prosecutor for the city, state, or federal government decides whether to press charges on the individual, and if so, which charges to bring.
- The individual is taken to arraignment, where a judge reads the charges against them. At arraignment, they may plead guilty or not guilty to those charges. If they plead not guilty, the judge arranges for a jury trial date and assigns a public attorney to the defendant if they qualify.
- The judge sets bail, and the defendant can either pay the bail amount or remain in jail until their trial date.
- The prosecutor and defense attorney engage in plea bargaining, wherein the prosecutor can offer a lower charge to the defendant in return for a guilty plea. The prosecutor and defense attorney also use this intermediate time to investigate the case and compile evidence in their favor.
- If the defendant does not take a plea bargain, they will then go to trial in front of a jury. If the defendant is convicted of the charges by the jury, the judge will then set the length of the prison sentence or impose other punishments permitted for that crime.
- The defendant may appeal their case, but generally they will now be sent to prison or to serve the sentence set by the judge.
While recent conversations about criminal justice have focused on Steps 1 and 2—laws and arrests—Steps 3, 6 and 7 are where public prosecutors and defenders take center-stage in the criminal process. There is good reason to believe that these steps carry a large share of the burden of mass incarceration and injustice in the criminal system. Fortunately, there is also good reason to believe that these steps are amenable to significant and sustained corrections, many of which are being pioneered across the United States today.
A Rise in Prosecution
Several years ago in Los Angeles County, the fire department was called to respond to a pair of flaming palm trees in a small strip mall. The police tagged along to investigate, and found the likely suspect sitting on a curb near the fire, dazed and nervous. They arrested the man and put him in jail to await charges. It appeared that the fire had been started by a cigarette butt the man had thrown into the trees from the man’s own statement and that of witnesses. Despite the man’s clear lack of intention in setting the fire, the prosecutors on the case decided to charge him with a form of arson called arson of forestland, since the objects on fire were trees. Arson of forestland carries a higher penalty than arson of regular property, which itself carries a felony charge while unintentional setting of fire is only a misdemeanor. The man was found not guilty in court.
In this case and all others, it is up to the prosecutors to determine exactly what crime was committed, and, like in the case above, many infractions do not fit easily into one criminal category. Laws are concrete but ambiguous, and there is lots of room for prosecutors to interpret the intentions of the defendant and the degree of damage. Prosecutors can also press multiple charges for a single offense; for example, a prosecutor could charge someone with five counts of assault for hitting the same person five times during a fight.
In the United States, prosecutors have full discretion over charges; there are no official or unofficial checks on that power. Defendants, defense attorneys and even judges only respond to the charges pressed, and have no participatory power in the charging process.
Prosecutorial discretion may be the key to understanding mass incarceration in the United States since 1980. John Pfaff, an economist at Fordham University, has dedicated much of his academic career to the very question of determining which step in the criminal process has produced the country’s enormous prison population. He investigates sentencing laws, arrest rates, conviction rates and drug laws, and concludes that none of these factors have been the primary drivers of mass incarceration.
“Over the 1990s and 2000s, crime fell, and so too did arrests. But prosecutions rose, and those rising prosecutions seemed to drive prison populations more than anything else — conviction rates remained roughly flat, as did the risk of being admitted to prison and the time spent there,” Pfaff says.
To parse the number of prosecutions over this time period, Pfaff studied felony filings per arrest from 1990 to 2010, and found that this measure increased significantly during this period. In 1994, only one in three arrests would be charged as a felony; by the late 2000s, two out of three were being charged this way. Sometime after 1980, arrests that had previously been met with a misdemeanor fine or a short stint in county jail started getting charged as felonies.
Why the increase in charges per arrest? Pfaff points to the rising number of prosecutors in the United States. In 1990, the country employed about 20,000 prosecutors. By 2007, that number was nearly 30,000. This is not the result of increasing caseloads—crime went down significantly from the early 1990s into the 2000s, and the population of the country increased by only 20 percent. With more attorneys available to prosecute less crimes, prosecutors could afford to charge a broader range of cases rather than triaging only the most egregious offenses. Pfaff postulates that the rising crime in the 1980s caused politicians to pursue more tough-on-crime campaign promises, including increased spending on prosecution. Why this trend continued even as crime rates plummeted may be due to a time delay effect, though no concrete answer has been discovered.
It is important to note that rising felony charges per arrest may not inherently be a bad thing. It’s important for a country to have the prosecutorial bandwidth to keep dangerous offenders off the streets. On the other hand, it is also inefficient to prosecute every crime that occurs. In the U.S. system, this discretion depends entirely on the integrity of the prosecutor handling the case. Even among conscientious, well-intentioned prosecutors, this is a heavy burden to carry. And when prosecutors do misstep, the current system does not have the mechanisms in place to prevent it.
The Problem with Plea Bargaining
The next crucial step in any criminal case is plea bargaining. While popular media and entertainment often portray criminal cases as courtroom dramas, filled with impassioned speeches and judges banging their gavels, only about 3 percent of criminal cases are handled in jury trials. The other 97 percent are mostly settled through a system called plea bargaining, where the prosecutor on a case offers a lower charge to the defendant in return for a guilty plea. Since different crimes carry different minimum sentences, taking a plea bargain may reduce a defendant’s sentence by half or more. Once a plea deal is reached, the defendant will be sentenced directly by the judge and avoid the laborious trial process.
Plea bargaining can introduce perverse incentives into a criminal case for both prosecutors and defenders. Both parties usually lack the resources to handle the bulk of their cases and might want to bargain in order to take a relatively minor case off their dockets.
Prosecutors determine which charges are pressed against a client and have most of the power when it comes to plea bargaining. They decide what initial charges are pressed and what lower-level offense they are willing to settle for. It is thus possible for overwhelmed prosecutors to intentionally pursue an initial charge with a long minimum sentence in order to leverage that charge in plea bargaining. A defendant is more likely to accept a plea deal when the anticipated prison time or other punishment is significantly reduced by the plea. Trials are risky, and defendants may opt for certainty over the possibility of a not-guilty verdict.
Since charging and plea bargaining are not recorded publicly, the frequency with which prosecutors pursue high initial charges for bargaining power is unknown. “No doubt some prosecutors overcharge their cases to create leverage in plea bargaining; many others don’t. I’m not familiar with any study of the prevalence of the problem,” George Fisher, professor of law and co-director of the Criminal Prosecution Clinic at Stanford University, says.
On the public defender side, limited budgets may compel defenders to cajole their clients into accepting plea deals even when the client would like to go to trial. Going to trial is a massive investment, and defenders have to prioritize those cases which are most likely to result in not-guilty verdicts. In some jurisdictions, public defenders refer to their working conditions as “plea factories,” churning out plea deals with little regard for the merits of any particular case. If they do not operate in this manner, they are at risk of massive backlog, which means longer time spent in jail for their clients.
But plea bargains do have their place in the justice system. For some defendants, plea bargaining can be highly advantageous. Fisher cites the following example in which plea bargaining is ideal for a defendant: “If a person burglarizes a home, is captured on film by a home security camera, leaves behind fingerprints and blood stains, and is found ten minutes later by the police with unique property identified by the homeowners as theirs, this person faces a very high likelihood of conviction after trial,” he says. “Sure, trials sometimes go awry, and juries sometimes nullify clear cases of guilt. But it would be rational for this defendant to prefer a guilty plea that offers some control over the sentence awarded rather than a trial followed by a near certainty of conviction.” Additionally, if the original crime is low-level and does not carry much prison time, a defendant might accept a plea deal that allows them to walk free with only a fine or probationary measures.
George Fisher is a professor of law and co-director of the Criminal Prosecution Clinic at Stanford University.
David Sklansky is a former prosecutor and current professor of Law at Stanford University.
Nonetheless, in those cases where prosecutors pursue more serious charges to induce pleas, defendants–both guilty and innocent of an offense–can be harmed. Defendants who are not given bail or are unable to afford it may accept a plea deal out of desperation. The time from arrest to trial can last more than a year; even if a defendant knows they are innocent and has evidence to prove it, they may lose their job and housing and endanger close relationships by waiting so long for a trial. Particularly for those crimes that carry low prison sentences, defendants may plead guilty to a lower felony or misdemeanor offense to expedite their return to normal life.
Our Failing Public Defense
Thanks to the Supreme Court rulings in Gideon v. Wainwright (1963) and Strickland v. Washington (1985), every person in the United States has the right to a competent defense in criminal cases at both the state and federal level. In most states, this means that individuals below a certain income threshold may request to have a public defender appointed to them rather than seek outside counsel. The right to an attorney is currently honored across the United States, but public defense in the United States hardly lives up to its constitutional mandate of competency.
One of the biggest barriers to effective counsel in indigent defense cases is the lack of resources available to public defenders. Public defenders are outcompeted by prosecutors, both in terms of sheer numbers and budgets; as of 2007, there were over 25,000 prosecutors and 15,000 public defenders. Prosecutors in all states had a total budget of $5.8 billion, while defenders had a budget of $2.3 billion. However, this significant budgetary difference still fails to capture the disparities in major monetary privileges afforded to prosecutors. While public defenders largely have to pay for their own investigators, DNA tests, and other modes of collecting evidence, prosecutors receive these services for free from the government. Thus, the actual gap in resources between prosecutors and defenders may be far greater. This gap is likely driven by the unpopularity of spending on criminal defense; politicians are often loath to expand funding on a program that can be chalked up to ‘assisting murderers and rapists’ by their opponents.
Public defense in many states is also marred by poor incentives arising from their personnel structures. According to the Brennan Center for Justice, the most common way states provide indigent defense in the United States is not through full-time public defender’s offices, but through flat-fee contracts with private attorneys. In the flat-fee system, private attorneys are paid a flat fee by the county or state to represent an unlimited number of clients. Since these attorneys receive the same payment regardless of the number of hours they work, they have strong incentives to cajole their clients into plea deals or else do the minimum possible amount of work on each case. This system is so dysfunctional that the American Bar Association recommends banning it outright, though it persists in many areas of the country.
For those clients who do receive a full-time public defender, the picture may not be much improved. Across the nation, public defenders are swamped with several times the number of cases they can realistically handle. While the American Bar Association recommends that public defenders handle a maximum of 150 felony cases per year, places such as Miami handled approximately 500 felony cases per defender in 2008. Public defenders with the best of intentions often have no choice but to plead out many of their cases for lack of time, taking to trial only those cases most likely to secure a not-guilty verdict. For those clients who do decide to go on to trial, wait times can still be immense and ruinous to their livelihoods, and they are by no means guaranteed to receive a strong defense. Many indigent defendants around the country have noted that during trial, their public defender was so underprepared as to nullify any chance of winning the case.
Those public defenders who do show up to the courtroom unprepared do so not only because of overwhelming caseloads. Public defenders face constant obstacles to getting the information they need to prove that a defendant is not guilty. Public defenders have fewer investigative resources than prosecutors do, and most lack open access to police records and other government-managed files. Technically, public defenders do have the right to some of this information: the Supreme Court ruling in Brady v. Maryland (1963) obliged prosecutors to turn over any evidence to the defense in a criminal case “where the evidence is material either to guilt or to punishment” (US Supreme Court). That is, prosecutors must turn over evidence that could show the defendant is innocent or committed a less serious offense than the one alleged. However, the Brady rule is complicated in practice, and again relies on prosecutorial discretion to function properly.
“Lots of prosecutors don’t understand Brady. That’s a significant problem,” David Sklansky, professor of law at Stanford University and former prosecutor focused on improving prosecutorial accountability and decision-making, says. “One problem with the Brady rule is that it’s very hard for a conscientious prosecutor to figure out exactly what Brady requires the prosecutor to turn over to the defense. The way the rule works is, the defendant has a constitutional right to information if, without the information, they’d get convicted and if they’d had the information there’s a significant chance that they wouldn’t have been convicted. That’s like a double hypothetical: assuming the defendant has been convicted and looking back to figure out if things would have been different if they’d turned information over. Prosecutors have an incentive to figure out a reason not to turn over the evidence because they’re worried about the evidence being misused, even a conscientious prosecutor. ”
Sklansky pointed out that even prosecutors with the best of intentions worry that sharing information with defense attorneys may open up their witnesses to harassment or character defamation, or otherwise distract the jury from the crux of a case by undermining witness credibility. Thus, prosecutors “have an incentive to figure out a reason not to turn over the evidence,” even if justice is their goal, Sklansky says.
Finally, since police departments control the initial police reports, these departments can block certain information from reaching both the prosecution and the defense. In order to obtain Brady-related information, prosecutors must contact their local police force for reports and disciplinary information that could erode the credibility of police as witnesses. Police departments are often reticent to turn over information that might harm their own officers, and there is little a prosecutor can do to investigate a police department’s transparency.
Thus, prosecutors and defenders often enter the courtroom with very different information. A public defender may not know of all the evidence against her client until the day of trial, making it nearly impossible to prepare for all possible lines of attack.
The Road to Reform
There are many sources of injustice lurking in the shadows of the criminal process. Fortunately, these issues are far from intractable—they are perhaps the most solvable sources of unfairness in the U.S. justice system. Solutions to these issues will benefit vulnerable Americans who, in the absence of private counsel, rely on public institutions to function well and honor their constitutional rights.
First, it’s important to remember that prosecutors deal with extremely difficult moral choices. Prosecutors are the only attorneys in the United States who do not have an ethical obligation toward their client; rather, they have an ethical obligation to do justice. While public defenders do not have to worry about the innocence or guilt of their client—many do not even ask—the prosecutor must always weigh the evidence to decide whether to continue pressing charges in a case.
That said, there is much that can be done to reform public prosecution in the United States. One possible area of reform is in the electoral process for prosecutors.
“Disappointing decisions by prosecutors are in no small part a symptom of what the voters want from those offices,” Pfaff says. “That said, one challenge faced by the question ‘are prosecutors doing justice?’ is that there’s no agreement on what ‘justice’ is. To some, a conviction-centered approach is, sincerely, doing justice.”
The notion that voters should determine the boundaries of justice is unique to the United States. “All the other democracies that I’m aware of choose the chief prosecutors of prosecutorial offices by either having them appointed by elected officials or by having them promoted through a prosecutorial bureaucracy,” Sklansky says. As such, Slansky questions the value of electing public prosecutors at all. “It can politicize criminal justice by making prosecutors think about how particular decisions they make in criminal cases will play with the electorate instead of thinking about what the law requires and what justice requires.” Sklansky points to New Jersey, Connecticut, and Alaska, the only states in which chief district attorneys are appointed rather than elected. Changing from an election system to an appointment system requires altering a state’s constitution, making it a difficult reform to pass but one likely to endure for generations once achieved.
The second necessary area of reform is in the plea bargaining phase, where defendants too often cede their right to a trial in order to minimize the risk of a catastrophic outcome. According to Sklansky, the United States is the only country where defendants might expect a 90 percent reduction on their sentence by taking a plea deal—for example, decreasing a sentence from 20 years to two years by charging them with a related but lesser offense. In other countries, a 10 percent sentence reduction is more the norm.
Sklansky explains that mandatory minimum sentencing laws are one culprit of this problem. Without a minimum mandatory sentence, the prosecutor can only argue for the judge to assign a long sentence, and the defendant can respond that since the prosecutor offered a plea deal with a low sentence, a low sentence is more just. “But if there’s a mandatory minimum sentence,” says Sklansky, “then the only way that somebody can get out from under that sentence is by having the charge dropped. And the prosecutor is the only one that gets to drop the charge in our system.”
Changing mandatory minimum sentencing laws will not only help reduce sentences for those taken to trial, but will also help rein in prosecutors who might use minimum sentencing laws to gain leverage in plea bargaining.
Finally, the trial process can be improved for defendants in several ways. To start, the Brady rule determining which information a prosecutor must share with the defense attorney on a case can be updated to be more simple and expansive. Sklansky suggests that the clearest way to rearticulate Brady is to institute an open discovery policy; that is, to have prosecutors share all information with the defense by default.
“This flips the presumption,” Sklansky says. Instead of letting prosecutors decide what to share, prosecutors would now decide what not to share. The pieces of evidence that the prosecutor believes should be private—the mental health histories of witnesses, for example—can be presented to a judge, who can use a protective order to remove that evidence from the shared case file. “All the states that have open file policies allow prosecutors to seek orders like that from the judge,” Sklansky says. Approximately one-third of states have implemented open file or other expansive policies, and others can follow suit.
Another obvious fix would be to allocate more funds to public defenders to mitigate overwhelming caseloads and hire more support staff to handle tasks such as investigations. However, Pfaff points out a possible indirect and negative effect of focusing on public defender budgets. “Public defenders may do very little: they can’t necessarily change the outcome of most cases filed, and better-funded defense may actually help legitimize oppressive prosecution,” he says. Sklansky agrees that charging less people with crimes would help reduce public defender caseloads while placing the burden of change on the prosecutors who pursue too many charges with overly harsh penalties.
Nonetheless, Pfaff says, there may be an indirect benefit of better funding for public defense, as well: creating more accountability among prosecutors. Many elected district attorneys, including a few notable ones in New York City, have reneged on their promises to stop pursuing charges for certain low-level offenses. Public defenders, Pfaff argues, are the best-positioned individuals to report on the injustices happening in the courtroom and to hold elected officials to account for their office’s practices. Doing this requires that public defenders have the time and attention to interrogate the prosecutorial decisions made in the cases they see, which could be improved by more funding. Sklansky agrees that providing more funding to public defenders would benefit individual defendants, and that a path to budgetary equality between prosecutors and defenders is realizable. In fact, Senator Kamala Harris (D-CA) introduced such a bill, the Equal Defense Act, in May 2019. The bill is awaiting a vote by the Senate.
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It is a grim moment in American history to reflect on the excesses of the country’s criminal justice system. But it is also a time of unusual hope, as politicians from both parties recognize the need for reform. This year, Chesa Boudin, a former public defender, was elected district attorney of San Francisco on a decarceration platform. The San Francisco District Attorney’s office has since ended cash bail in the city and fought for new legislation protecting and giving parolees the right to vote. On the other side of the aisle, President Donald Trump has also passed legislation to reform sentencing laws. In 2019, Trump passed the First Step Act to retroactively reduce the sentences of thousands of prisoners in the federal prison system for drug-related offenses, calling on states to take similar measures. Critically, it also allows judges to disregard mandatory minimum sentences in non-violent drug crimes, returning a moderate but promising amount of judicial discretion to the bench. It also retroactively repeals the differential sentencing for crack and powder cocaine, a disparity that especially harms African Americans. Forty years into the mass incarceration era, both sides of the aisle are awakening to the social and economic toll of the United States’ 2.3 million incarcerated people.
“There is absolutely a path to [reform],” says Sklansky. “We would just need to decide as a society that it was worth it.”